Excerpt:civil - res judicata - sections 9 (12) and 84 (2) of madras hindu religious endowments act, 1927, section 2 (1) of madras temple authorisation act, 1947 and section 11 of code of civil procedure, 1908 - whether order passed under section 84 (2) operate as res judicata in subsequent suit - allegedly no identity of parties so as to make order operate as res judicata - worshippers represented in proceedings under section 84 (2) - hindu religious endowment board represents general body of worshippers and contested on their behalf - present suit barred by res judicata.
- - 2. in the trial court as well before the learned judge of the madras high court the appellants took up the extreme position that under no circumstance would an order, passed by a district court under section 84 (2) of..........in question was a public temple. o. p. no. 32 of 1928 was filed under section 84 (2) of the madras hindu religious endowments act (2 of 1927) for setting aside the decision of the hindu religious endowments board under section 84 (1) of the same act that the temple was one to which that act would apply.the subordinate judge upheld the contention of defendants 7 to 12 and dismissed o. s. no. 2 of 1949, and thereupon the plaintiffs filed a. s. no. 66 of 1951. panchapakesa ayyer j., heard that appeal and dismissed it, confirming the decision of the subordinate judge, and so, the plaintiffs have filed this letters patent appeal. the only question which arises for consideration in the appeal is whether the decision in o. p. no. 32 of 1928, namely, ex. b.2, would operate as res judicata or not.....

Judgment:

Kumara Pillai, J.

1. This is a Letters Patent Appeal against the judgment and decree passed by Panchapakesa Ayyer J., of the Madras High Court in A. S. No. 66 of 1951 of that court. Plaintiffs 1 and 2 in O. S. No. 2 of 1949 of the court of the Additional Subordinate Judge of Ottapalam are the appellants. They are the karanavans and managers of their illoms, and they brought the said suit for a declaration that the Moonumoorthy temple in Trikkateeri amsom was not a temple coming under the definition of that term as defined in the Madras Temple Entry Authorisation Act (Madras Act 5 of 1947) and that the provisions of the Act were not applicable to that temple as it was founded by their ancestors for private worship by their families.

Before filing the suit, they had made a reference to the Government under Section 6 of the Madras Temple Entry Authorisation Act as to whether the temple would come within the purview of that Act; and that reference was decided by the Government on 11-12-1948 holding that the temple would come within the purview of the Act. The Appellants then brought O. S. No. 2 of 1949, filing it as a representative suit and impleading therein six persons as defendants to represent six different communities among the Hindus of the locality.

Those defendants remained ex parte, but six other persons got themselves impleaded as defendants 7 to 12 and they contested the suit. Their main contention being that the suit was barred by res judicata' by reason of the decision of the District Court of South Malabar in O. P. No. 32 of 1928 on its file that the temple in question was a public temple. O. P. No. 32 of 1928 was filed under Section 84 (2) of the Madras Hindu Religious Endowments Act (2 of 1927) for setting aside the decision of the Hindu Religious Endowments Board under Section 84 (1) of the same Act that the temple was one to which that Act would apply.

The Subordinate Judge upheld the contention of defendants 7 to 12 and dismissed O. S. No. 2 of 1949, and thereupon the plaintiffs filed A. S. No. 66 of 1951. Panchapakesa Ayyer J., heard that appeal and dismissed it, confirming the decision of the Subordinate Judge, and so, the plaintiffs have filed this Letters Patent Appeal. The only question which arises for consideration in the appeal is whether the decision in O. P. No. 32 of 1928, namely, Ex. B.2, would operate as res judicata or not so far as the present suit is concerned.

2. In the trial court as well before the learned Judge of the Madras High Court the appellants took up the extreme position that under no circumstance would an order, passed by a District Court under Section 84 (2) of the Madras Hindu Religious Endowments Act, operate as res judicata in any subsequent suit or proceeding. This extreme contention was not rightly pressed before us in view of the Bench decisions of the Madras High Court in Sri Ishwarananda Bharathi Swami v. Commr., H. R. E. Board, AIR 1932 Mad 593, and Balakotayya v. Nagayya, AIR 1946 Mad 509, which have been followed in later cases.

In AIR 1946 Mad 509, it was expressly held that the proceeding under Section 84 (2) is analogous to a suit, and the decision is one given in proceedings which are in the nature of a suit and would therefore operate as res judicata in a subsequent proceeding between the same parties. The attempt of the learned counsel for the appellants before us was to distinguish the present case from AIR 1946 Mad 509, on two grounds.

3. The main question which came for decision in AIR 1932 Mad 593, was whether, in proceedings under Section 84 (2) of the Madras Hindu Religious Endowments Act, the applicant trustee had the right to adduce evidence in the District Court or whether the court was bound to decide the case only on the evidence in the proceedings before the Hindu Religious* Endowments Board under Section 84 (1).

The case came up before the High Court on a revision petition filed by the applicant-trustee from an order of the District Judge of South Canara in O. P. No. 56 of 1928 on his file refusing to allow the trustee to adduce evidence in the District Court. It was contended on behalf of the Hindu Religious Endowments Board, the opposite party, that the proceedings under Section 84 (2) were summary proceedings, and so, the trustee had no right to adduce evidence.

After an elaborate consideration of the question Ananthakrishna Ayyar J., held that the proceedings under Section 84 (1) of the Hindu Religious Endowments Act were not summary proceedings and were in the nature of a suit and that the applicant-trustee had, therefore, the right to adduce evidence; and by a short and separate judgment Reilly J., the other member of the Bench, concurred in the opinion expressed by Ananthakrishna Ayyar J. The decision in AIR 1932 Mad 593 was followed in subsequent cases, and finally in AIR 1946 Mad 509, also, after an elaborate consideration of the question, it was held by another Division Bench that the proceedings under Section 84 (2) are of the nature of a suit and that the applicant had the right to adduce evidence in the District Court.

The case which gave rise to the decision in AIR 1946 Mad 509 arose out of O. P. No. 96 of 1942 of the District Court of Guntur. As the O. P., the order in which is sought to be relied upon as constituting 'res judicata' in the case before us, was filed in 1928 (O. P. No. 32 of 1928) and was disposed of on 10-8-1929 (see Ex. B2), the appellants' counsel contended that the trustees in the present case had not the right, or at least the opportunity, to adduce evidence in the said O. P. as the right of the trustees to adduce evidence in proceedings under Section 84 (2) was conferred or recognised only by the decision in AIR 1932 Mad 593 and that, therefore, O. P. No. 32 of 1928 should be deemed to have been only a summary proceeding and not a proceeding of the nature of a suit and the order therein should not be taken as constituting 'res judicata' in subsequent proceedings.

We are unable to accept this contention, for it is not correct to say that the right of the trustees to adduce evidence in the proceedings under Section 84 (2) was conferred only by the decision in AIR 1932 Mad 593. As pointed out by Panchapakesa Ayyar J., courts do not enact new law or change existing laws. Their decisions are only declarations as to what is the existing law or expositions of the same. The fact that some subordinate courts had misunderstood the law or misapplied it and that, on appeal from their decisions, the High Court had to correct their mistakes and declare and expound what the correct law was would not change the nature of the proceedings or affect the nature and consequences of the orders in other similar proceedings unless the orders in such proceedings were also set aside in appropriate proceedings.

It is conceded that there was no attempt at all to set aside the order in O. P. No. 32 of 1928. Further, there is also no complaint, or even suggestion, that the applicants in O. P. No. 32 of 1928 had applied for adducing evidence in the District Court and that their application had been wrongly dismissed. There is no basis whatever for the contention that the parties and their advocates and the court had acted under a mistaken notion of Jaw in O. P. No. 32 of 1928. The first ground urged by the appellants' counsel for distinguishing the present case from AIR 1946 Mad 509, is, therefore, unsustainable.

4. The dictum in AIR 1946 Mad 509 is that the order in the prior proceeding operates as 'res Judicata' in a subsequent proceeding between the same parties. The appellants' second contention before us was that there is no identity of parties so far as O. P. No. 32 of 1928 and the present suit are concerned. According to the appellants, as in the proceedings under Section 84 (1), out of which O. P. No. 32 of 1928 arose, the worshippers were not before the Hindu Religious Endowments Board and the O. P. under Section 84 (2) was filed only to set aside the order passed under Section 84 (1), the defendants in the present suit, who are contending that the temple in question is not a private temple but a place of public religious worship, cannot be deemed to have been represented, in the O. P. by the opposite party therein, namely, the Hindu Religious Endowments Board; and so, there is no identity of parties so as to make the order in the O. P. operate as 'res judicata'.

We are unable to accept this contention also. What is sought to be relied upon as constituting 'res judicata' is not the order in the proceedings under Section 84 (1) but the order in the proceedings under Section 84 (2) and, therefore, what has to be ascertained is whether the worshippers were represented in the proceedings under Section 84 (2) and not whether they were represented in the proceedings under Section 84 (1). The proceedings under Section 84 (1) arose because of the dispute as to whether the Madras Hindu Religious Endowments Act would apply to this temple and the decision of that dispute depended upon the question whether the temple was a private temple or a place of public religious worship. In the decision of that question all the worshippers were vitally concerned, and so, in the O. P. to set aside the decision of the Hindu Religious Endowments Board that the temple was a place of public worship it was necessary for the trustees to implead the persons competent to represent the worshippers.

The Hindu Religious Endowments Board was contending in the O. P. that the temple was not a private temple but a place of public religious worship. In view of the nature of the office of the Board, and their contention and the other circumstances mentioned above it has to be taken that the Hindu Religious Endowments Board was representing the general body of worshippers in the O. P. and contesting it on their behalf. We, therefore, hold that the contention that the contesting defendants in the present suit were not represented in the O. P. has also to be repelled.

5. Lastly, it was urged by the appellants' counsel that the questions decided in O. P. No. 32 of 1928 and in the present suit are not identical and that, for that reason also, the plea of res judicata is not acceptable. ' This contention turns upon the definition of the term 'temple' in the Hindu Religious Endowments Act and in the Temple Entry Authorisation Act. In the Hindu Religious Endowments Act:

'Temple means a place, by whatever designation known, used as a place of public religious worship and dedicated to, or for the benefit of, or used as of right by, the Hindu community, or any section thereof, as a place of religious worship.'

In the Temple Entry Authorisation Act the definition is:

'Temple means a place, by whatever name known, which is dedicated to, or for the benefit of, or used as of right by, the Hindu community (or any section thereof) in general, as a place of public religious worship, and includes subsidiary shrines and mantapams attached to such place.'

According to the appellants counsel, to constitute 'temple' under the Madras Temple Entry Authorisation Act (5 of 1947) dedication is essential whereas under the Madras Hindu Religious Endowments Act (2 of 1927) dedication was not essential and even temples used as of right as a place of religious worship would come within the purview of the Act and be public temples. It is not possible to accept this contention, for the conjunction used in both Acts before the words 'used as of right by' is 'or' and in neither Act the word] 'and' occurs before the words 'used as of right' by'.

6. In the result, the appeal fails and is accordingly dismissed with costs.